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1. Legal Capacity
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2. Testamentary Capacity
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3. Testamentary Intent
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4. Formalities
Warning: Jurisdictions differ as to which of
the below gives a person legal capacity.
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18 years old or older.
Married
Divorced
Emancipated minor
In military
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1. Understand what doing and its effect.
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2. Know general nature and extent of
property.
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3. Know natural objects of bounty.
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4. Achieve above three elements
simultaneously.
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1. When = at time of will execution
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2. Effect of incapacity adjudication =
rebuttable presumption of lack of capacity
 But, could execute will during lucid interval.
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3. Sane person may lack capacity.
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4. Impact of aging process.
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5. Contract capacity compared.
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6. Evidence
 Lay testimony.
 Expert testimony.
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7. Client with Questionable Capacity
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8. Reactions of fact finders
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Testator must intend the very instrument
the testator executes to be the will.
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A classic “letter” case.
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A classic “initiation” case.
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Classic “specimen” or “draft” case
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Attested (witnessed)
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Holographic (handwritten)
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Nuncupative (oral)
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Others
 Military
 Notarized (UPC)
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Ritual or cautionary
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Evidentiary
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Protective
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Channeling
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No requirement regarding what written on
or with.
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Any symbol executed or adopted by the
testator with present intent to
authenticate the will.
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By the testator’s direction, and
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In the testator’s presence.
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States vary – any place or at end
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Should be at the end or “foot” of will.
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Number = at least two
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Vermont was the last state to require three
until July 1, 2006.
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1. Legal Capacity
 Age varies among jurisdictions
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2. Attestation Capacity
 Credible; qualified to testify in court
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3. Time
 When attestation occurred
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4. Knowledge – “Publication”
 Do witnesses need to know they are witnessing
a will?
 States vary.
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What if witnesses attest before testator
signs?
 Strict View
 Continuous Transaction View
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States vary.
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States vary.
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States vary.
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1. Witnesses attest in presence of testator?
 States vary
 “Conscious Presence”
 Visually-impaired testators
 Dead testators
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2. Witnesses attest in each other’s
presence?
 States vary.
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3. Testator signs (or acknowledges a prior
signature) in presence of witnesses?
 States vary.
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1. Effect on will
 None – will remains valid.
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2. Effect on beneficiary’s gift
 Void? [“Purging statute”]
 Void unless exception applies?
 Irrelevant (UPC)?
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Normally, little thought given or than to
meet basic requirements
 Age
 Competent
 Not a beneficiary
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1. Witnesses familiar with testator
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2. Supernumerary witness
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3. Youthful and healthy witnesses
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4. Traceable witnesses
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5. Witnesses who would favorably impress
judge and jury.
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Substitutes for in-court testimony of
witnesses when will probated.
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Saves time, expense, and inconvenience
when probating will.
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Does not “strengthen” the will.
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1. Traditional –
two-step with
“double”
signatures.
SPA is separate
document.
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2. Modern –
one- step with
“single”
signatures.
SPA is inside
the will.
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1. Psychological benefits
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1. Psychological benefits
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2. Effectuate client’s intent
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1. Psychological benefits
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2. Effectuate client’s intent
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3. Limit exposure to malpractice claims
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1. Before ceremony
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2. Ceremony
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3. After ceremony
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Drafting a will and supervising a will
execution ceremony = the practice of law.
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Do NOT engage in this conduct until
licensed.
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NO exception that testator knows you are
unlicensed or you are not being paid.
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In about 50% of the states, removes the
attestation requirement.
Policy – less chance for fraud
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1. Intent approach.
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2. Surplusage Approach
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3. Material provision approach
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1. _________________
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2. __________________
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3. __________________
I leave all my
property to
Margaret.
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1. Made in testator’s last sickness
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2. Personal property only
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3. Reduced to writing
 Within 10 days of speaking of will
 Attested by 2 disinterested and competent individuals
 Witnesses testify about capacity, etc.
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4. Must be offered for probate within three
months of death.
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If will executed with formalities specified
by federal law, deemed to satisfy
formalities of all states.
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Allow JAGs to prepare wills for service
members without hassling with particular
requirements of each state.
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Does it violate 10th Amendment?
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California, Maine, Michigan, Wisconsin
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If notarized (acknowledged), no witnesses
needed.
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Just a few states have enacted:
 Colorado
 Massachusetts
 North Dakota